SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1095 

CA 11-00834 

PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

HEATHER BERMINGHAM, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

THE PETER, SR. & MARY L. LIBERATORE FAMILY 

LIMITED PARTNERSHIP, DOING BUSINESS AS LINCOLN 

SQUARE APARTMENTS, DEFENDANT-APPELLANT. 

 

COHEN & LOMBARDO, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR

DEFENDANT-APPELLANT.

CHIACCHIA & FLEMING, LLP, HAMBURG (TIFFANY M. KOPACZ OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Timothy

J. Drury, J.), entered December 7, 2010 in a personal injury action. 

The order granted the motion of plaintiff to set aside a jury verdict

on damages for pain and suffering and denied the cross motion of

defendant to set aside the jury verdict on the issue of comparative

negligence. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by vacating the amount of $100,000 for

past pain and suffering in the fourth ordering paragraph and

substituting therefor the amount of $50,000, by vacating the amount of

$200,000 for future pain and suffering in the sixth ordering paragraph

and substituting therefor the amount of $100,000, and by providing in

the seventh ordering paragraph that a new trial will be conducted on

those two elements of damages unless defendant, within 20 days of

service of a copy of the order of this Court with notice of entry,

stipulates to reduce the award of damages accordingly, and as modified

the order is affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she sustained when she allegedly slipped and fell on black

ice in a parking lot owned by defendant. Following a trial, the jury

found that plaintiff and defendant were negligent but that only

defendant’s negligence was a substantial factor in causing the

injuries sustained by plaintiff. The jury awarded plaintiff, inter

alia, a total of $25,000 for past and future pain and suffering. 

Defendant appeals from an order granting plaintiff’s post-trial motion

to set aside the jury verdict on damages for past and future pain and

suffering and denying defendant’s post-trial cross motion to set aside

the verdict on the issue of comparative negligence. Supreme Court
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CA 11-00834 

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determined that reasonable compensation for past pain and suffering

was $100,000 and that reasonable compensation for future pain and

suffering was $200,000. The court granted a new trial on those

elements of damages unless the parties stipulated to damages in those

amounts. 

Defendant contends that the court erred in allowing plaintiff to

proceed under a theory that defendant had not properly maintained the

parking lot. That contention is not properly before us inasmuch as

defendant appeals from the order granting plaintiff’s post-trial

motion to set aside the verdict and denying defendant’s post-trial

cross motion to set aside the verdict, which does not bring up for

review the court’s pretrial ruling with regard to the issue of

improper maintenance (cf. CPLR 5501 [a]). In any event, plaintiff’s

bill of particulars provides enough information to put defendant on

notice with respect to plaintiff’s allegation that the condition and

grade of the parking lot and defendant’s improper maintenance thereof

caused or contributed to the accumulation of ice.

We reject defendant’s further contention that the court erred in

denying its post-trial cross motion on the ground that the jury

verdict was inconsistent with respect to the issue of comparative

negligence. “A jury finding that a party was negligent but that such

negligence was not a proximate cause of the accident is inconsistent

and against the weight of the evidence only when the issues are so

inextricably interwoven as to make it logically impossible to find

negligence without also finding proximate cause” (Skowronski v

Mordino, 4 AD3d 782, 783 [internal quotation marks omitted]). Where,

as here, “ ‘an apparently inconsistent . . . verdict can be reconciled

with a reasonable view of the evidence, the successful party is

entitled to the presumption that the jury adopted that view’ ” (Mascia

v Olivia, 299 AD2d 883). Indeed, the jury was entitled to conclude

that plaintiff acted in a negligent manner but that, because the

ultimate cause of the accident was the black ice, plaintiff’s

negligence in either wearing worn sneakers or failing to take proper

care while walking was not a substantial factor in causing the

accident.

Contrary to defendant’s contention, we conclude that the jury

award for past and future pain and suffering deviated materially from

what would be reasonable compensation (see CPLR 5501 [c]). We agree

with defendant, however, that the court’s additur was excessive. We

therefore modify the order by vacating the amount of $100,000 for past

pain and suffering in the fourth ordering paragraph and substituting

therefor the amount of $50,000, and by vacating the amount of $200,000

for future pain and suffering in the sixth ordering paragraph and

substituting therefor the amount of $100,000. We further modify the

order by providing in the seventh ordering paragraph that a new trial

will be conducted on those two elements of damages only unless

defendant, within 20 days of service of a copy of the order of this

Court with notice of entry, stipulates to reduce the award of damages 
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CA 11-00834 

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accordingly.

 

Entered: December 23, 2011 Frances E. Cafarell

Clerk of the Court